Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 389


Introduced by Assembly Member Williams

February 15, 2013


An act to amendbegin delete Section 44237end deletebegin insert Sections 44237end insertbegin insert andend insertbegin insert 56366.1end insert of the Education Code, relating to private schools.

LEGISLATIVE COUNSEL’S DIGEST

AB 389, as amended, Williams. Private schools: employees.

begin insert

(1) Existing law sets forth a method for providing special education and related services to pupils with exceptional needs. Existing law also permits, under certain circumstances, contracts to be entered for the provision of those services by nonpublic, nonsectarian schools or agencies, as defined. Existing law authorizes a master contract for special education and related services provided by a nonpublic, nonsectarian school or agency only if the school or agency has been certified by the Superintendent of Public Instruction as meeting specified standards. The Superintendent is prohibited from certifying, or renewing the certification of, a nonpublic, nonsectarian school or agency, unless certain requirements are met.

end insert
begin insert

This bill would require a nonpublic, nonsectarian school or agency to submit evidence of a successful criminal background check determination, as provided, for each owner, operator, or employee of the school or agency before the Superintendent may certify or renew the certification of the school or agency.

end insert
begin delete

Existing

end delete

begin insert(end insertbegin insert2)end insertbegin insertend insertbegin insertExistingend insert law requires every person, firm, association, partnership, or corporation offering or conducting private school instruction on the elementary or high school level to require each applicant for employment in a position requiring contact with minor pupils who does not possess a valid California state teaching credential, or is not currently licensed by another state agency that requires a criminal record summary, to submit 2 sets of fingerprints to the Department of Justice for the purpose of obtaining a criminal record summary from the Department of Justice and the Federal Bureau of Investigation.

This bill would delete the exemption for applicants possessing a valid California state teaching credential or who are currently licensed by another state agency that requires a criminal record summary, from submitting 2 sets of fingerprints for the purpose of obtaining a criminal record summary from the Department of Justice and the Federal Bureau of Investigation. The bill also would make technical, nonsubstantive changes.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 44237 of the Education Code is amended
2to read:

3

44237.  

(a) Every person, firm, association, partnership, or
4corporation offering or conducting private school instruction on
5the elementary or high school level shall require each applicant
6for employment in a position requiring contact with minor pupils
7to submit two sets of fingerprints prepared for submittal by the
8employer to the Department of Justice for the purpose of obtaining
9criminal record summary information from the Department of
10Justice and the Federal Bureau of Investigation.

11(b) (1) As used in this section, “employer” means every person,
12firm, association, partnership, or corporation offering or conducting
13private school instruction on the elementary or high school level.

14(2) Asbegin delete useend deletebegin insert usedend insert in this section, “employment” means the act of
15engaging the services of a person, who will have contact with
16pupils, to work in a position at a private school at the elementary
17or high school level on or after September 30, 1997, on a regular,
18paid full-time basis, regular, paid part-time basis, or paid full-time
19or part-time seasonal basis.

20(3) As used in this section, “applicant” means any person who
21is seriously being considered for employment by an employer.

P3    1(4) This section does not apply to a secondary school pupil
2working at the school he or she attends or a parent or legal guardian
3working exclusively with his or her children.

4(c) (1) Upon receiving the identification cards, the Department
5of Justice shall ascertain whether the applicant has been arrested
6or convicted of any crime insofar as that fact can be ascertained
7from information available to the Department of Justice and
8forward the information to the employer submitting the fingerprints
9no more than 15 working days after receiving the identification
10cards. The Department of Justice shall not forward information
11regarding criminal proceedings that did not result in a conviction
12but shall forward information on arrests pending adjudication.

13(2) Upon implementation of an electronic fingerprinting system
14with terminals located statewide and managed by the Department
15of Justice, the Department of Justice shall ascertain the information
16required pursuant to this subdivision within three working days.
17If the Department of Justice cannot ascertain the information
18required pursuant to this subdivision within three working days,
19the Department of Justice shall notify the employer submitting the
20fingerprints that it cannot so ascertain the required information.
21This notification shall be delivered by telephone or email to the
22employer submitting the fingerprints. If the employer submitting
23the fingerprints is notified by the Department of Justice that it
24cannot ascertain the required information about a person, the
25employer shall not employ that person until the Department of
26Justice ascertains that information.

27(3) The Department of Justice shall review the criminal record
28summary it obtains from the Federal Bureau of Investigation to
29ascertain whether an applicant for employment has a conviction,
30or an arrest pending final adjudication, for any sex offense,
31controlled substance offense, crime of violence, or serious or
32violent felony. The Department of Justice shall provide written
33notification to the private school employer only as to whether an
34applicant for employment has any convictions, or arrests pending
35final adjudication, for any of these crimes.

36(d) An employer shall not employ a person until the Department
37of Justice completes its check of the state criminal history file as
38set forth in this section.

39(e) (1) An employer shall not employ a person who has been
40convicted of a violent or serious felony or a person who would be
P4    1prohibited from employment by a public school district pursuant
2to any provision of this code because of his or her conviction for
3any crime.

4(2) A person who would be prohibited from employment by a
5private school pursuant to paragraph (1)begin delete mayend deletebegin insert shallend insert not, on or after
6July 1, 1999, own or operate a private school offering instruction
7on the elementary or high school level.

8(f) An employer shall request subsequent arrest service from
9the Department of Justice as provided under Section 11105.2 of
10the Penal Code.

11(g) This section applies to any violent or serious offense that,
12if committed in this state, would have been punishable as a violent
13or serious felony.

14(h) For purposes of this section, a violent felony is any felony
15listed in subdivision (c) of Section 667.5 of the Penal Code and a
16serious felony is any felony listed in subdivision (c) of Section
171192.7 of the Penal Code.

18(i) Notwithstanding subdivision (e), a person shall not be denied
19employment or terminated from employment solely on the basis
20that the person has been convicted of a violent or serious felony
21if the person has obtained a certificate of rehabilitation and pardon
22pursuant to Chapter 3.5 (commencing with Section 4852.01) of
23Title 6 of Part 3 of the Penal Code.

24(j) Notwithstanding subdivision (e), a person shall not be denied
25employment or terminated from employment solely on the basis
26that the person has been convicted of a serious felony that is not
27also a violent felony if that person can prove to the sentencing
28court of the offense in question, by clear and convincing evidence,
29that he or she has been rehabilitated for the purposes of school
30employment for at least one year. If the offense in question
31occurred outside this state, then the person may seek a finding of
32rehabilitation from the court in the county in which he or she is a
33resident.

34(k) The commission shall make available to each private school
35a listing of all credentialholders who have had final adverse action
36taken against their credential. The information shall be identical
37to that made available to public schools in the state. The
38commission shall also send on a quarterly basis a complete and
39updated list of all teachers who have had their teaching credentials
P5    1revoked or suspended, excluding teachers who have had their
2credentials reinstated, or who are deceased.

3(l) The Department of Justice may charge a reasonable fee to
4cover costs associated with the processing, reviewing, and
5supplying of the criminal record summary as required by this
6section. The fee shall not exceed the actual costs incurred by the
7Department of Justice.

8(m) Where reasonable access to the statewide electronic
9fingerprinting network is available, the Department of Justice may
10mandate electronic submission of the fingerprints and related
11information required by this section.

12(n) All information obtained from the Department of Justice is
13confidential. Agencies handling Department of Justice information
14shall ensure the following:

15(1) A recipient shall not disclose its contents or provide copies
16of information.

17(2) Information received shall be stored in a locked file separate
18from other files, and shall only be accessible to the custodian of
19records.

20(3) Information received shall be destroyed upon the hiring
21determination in accordance with subdivision (a) of Section 708
22of Title 11 of the California Code of Regulations.

23(4) Compliance with destruction, storage, dissemination,
24auditing, backgrounding, and training requirements as set forth in
25Sections 700 to 708, inclusive, of Title 11 of the California Code
26of Regulations and Section 11077 of the Penal Code governing
27the use and security of criminal offender record information is the
28responsibility of the entity receiving the information from the
29Department of Justice.

30begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 56366.1 of the end insertbegin insertEducation Codeend insertbegin insert is amended to
31read:end insert

32

56366.1.  

(a) A nonpublic, nonsectarian school or agency that
33seeks certification shall file an application with the Superintendent
34on forms provided by the departmentbegin insert,end insert andbegin insert shallend insert includebegin insert all ofend insert the
35following information on the application:

36(1) A description of the special education and designated
37instruction and services provided to individuals with exceptional
38needs if the application is for nonpublic, nonsectarian school
39certification.

P6    1(2) A description of the designated instruction and services
2provided to individuals with exceptional needs if the application
3is for nonpublic, nonsectarian agency certification.

4(3) A list of appropriately qualified staff, a description of the
5credential, license, or registration that qualifies each staff member
6rendering special education or designated instruction and services
7to do so, and copies of their credentials, licenses, or certificates of
8registration with the appropriate state or national organization that
9has established standards for the service rendered.

10(4) An annual operating budget.

11(5) Affidavits and assurances necessary to comply with all
12applicable federal, state, and local laws and regulations that include
13criminal record summaries required of all nonpublic, nonsectarian
14school or agency personnel having contact with minor children
15under Section 44237.

16(b) (1) The applicant shall provide the special education local
17plan area in which the applicant is located with the written
18notification of its intent to seek certification or renewal of its
19certification. The applicant shall submit on a form, developed by
20the department, a signed verification by local educational agency
21representatives that they have been notified of the intent to certify
22or renew certification. The verification shall include a statement
23that representatives of the local educational agency for the area in
24which the applicant is located have had the opportunity to review
25the application at least 60 calendar daysbegin delete prior toend deletebegin insert beforeend insert submission
26of an initial application to the Superintendent, or at least 30
27calendar daysbegin delete prior toend deletebegin insert beforeend insert submission of a renewal application
28to the Superintendent. The signed verification shall provide
29assurances that local educational agency representatives have had
30the opportunity to provide input on all required components of the
31application.

32(2) If the applicant has not received a response from the local
33educational agency 60 calendar days from the date of the return
34receipt for initial applications or 30 calendar days from the date
35of the return receipt for renewal applications, the applicant may
36 file the application with the Superintendent. A copy of the return
37receipt shall be included with the application as verification of
38notification efforts to the local educational agency.

P7    1(3) The department shall mail renewal application materials to
2certified nonpublic, nonsectarian schools and agencies at least 120
3daysbegin delete prior toend deletebegin insert beforeend insert the date their current certification expires.

4(c) If the applicant operates a facility or program on more than
5one site, each site shall be certified.

6(d) If the applicant is part of a larger program or facility on the
7same site, the Superintendent shall consider the effect of the total
8program on the applicant. A copy of the policies and standards for
9the nonpublic, nonsectarian school or agency and the larger
10program shall be available to the Superintendent.

11(e) begin deletePrior to end deletebegin insertBefore end insertcertification, the Superintendent shall conduct
12an onsite review of the facility and program for which the applicant
13seeks certification. The Superintendent may be assisted by
14representatives of the special education local plan area in which
15the applicant is located and a nonpublic, nonsectarian school or
16agency representative who does not have a conflict of interest with
17the applicant. The Superintendent shall conduct an additional onsite
18review of the facility and program within three years of the
19effective date of the certification, unless the Superintendent
20conditionally certifies the school or agencybegin insert,end insert or unless the
21Superintendent receives a formal complaint against the school or
22agency. In the latter two cases, the Superintendent shall conduct
23an onsite review at least annually.

24(f) The Superintendent shall make a determination on an
25application within 120 days of receipt of the application and shall
26certify, conditionally certify, or deny certification to the applicant.
27If the Superintendent fails to take one of these actions within 120
28days, the applicant is automatically granted conditional certification
29for a period terminating on August 31 of the current school year.
30If certification is denied, the Superintendent shall provide reasons
31for the denial. The Superintendent begin delete may certify the school or agencyend delete
32begin insert shall not certify the nonpublic, nonsectarian school or agencyend insert for
33a periodbegin delete of notend delete longer than one year.

34(g) Certification becomes effective on the date the nonpublic,
35nonsectarian school or agency meets all the application
36requirements and is approved by the Superintendent. Certification
37may be retroactive if thebegin insert nonpublic, nonsectarianend insert school or agency
38met all the requirements of this section on the date the retroactive
39certification is effective. Certification expires on December 31 of
40the terminating year.

P8    1(h) The Superintendent annually shall review the certification
2of each nonpublic, nonsectarian school and agency. For this
3purpose, a certified school or agency annually shall update its
4application between August 1 and October 31, unless the board
5grants a waiver pursuant to Section 56101. The Superintendent
6may conduct an onsite review as part of the annual review.

7(i) (1) The Superintendent shall conduct an investigation of a
8nonpublic, nonsectarian school or agency onsite at any time without
9prior notice if there is substantial reason to believe that there is an
10immediate danger to the health, safety, or welfare of a child. The
11Superintendent shall document the concern and submit it to the
12nonpublic, nonsectarian school or agency at the time of the onsite
13investigation. The Superintendent shall require a written response
14to any noncompliance or deficiency found.

15(2) With respect to a nonpublic, nonsectarian school, the
16Superintendent shall conduct an investigation, which may include
17an unannounced onsite visit, if the Superintendent receives
18evidence of a significant deficiency in the quality of educational
19services provided, a violation of Section 56366.9, or
20noncompliance with the policies expressed by subdivision (b) of
21Section 1501 of the Health and Safety Code by the nonpublic,
22nonsectarian school. The Superintendent shall document the
23complaint and the results of the investigation and shall provide
24copies of the documentation to the complainant, the nonpublic,
25nonsectarian school, and the contracting local educational agency.

26(3) Violations or noncompliance documented pursuant to
27paragraph (1) or (2) shall be reflected in the status of the
28certification of the school, at the discretion of the Superintendent,
29pending an approved plan of correction by the nonpublic,
30nonsectarian school. The department shall retain for a period of
31 10 years all violations pertaining to certification of the nonpublic,
32nonsectarian school or agency.

33(j) The Superintendent shall monitor the facilities, the
34educational environment, and the quality of the educational
35program, including the teaching staff, the credentials authorizing
36service, the standards-based core curriculum being employed, and
37the standard-focused instructional materials used, of an existing
38certified nonpublic, nonsectarian school or agency on a three-year
39cycle, as follows:

P9    1(1) The nonpublic, nonsectarian school or agency shall complete
2a self-review in year one.

3(2) The Superintendent shall conduct an onsite review of the
4nonpublic, nonsectarian school or agency in year two.

5(3) The Superintendent shall conduct a followup visit to the
6nonpublic, nonsectarian school or agency in year three.

7(k) (1) Notwithstanding any other provision of law, the
8Superintendent shall not certify a nonpublic, nonsectarian school
9or agency that proposes to initiate or expand services to pupils
10currently educated in the immediate prior fiscal year in a juvenile
11court program, community school pursuant to Section 56150, or
12other nonspecial education program, including independent study
13or adult school, or both, unless the nonpublic, nonsectarian school
14or agency notifies the county superintendent of schools and the
15special education local plan area in which the proposed new or
16expanded nonpublic, nonsectarian school or agency is located of
17its intent to seek certification.

18(2) The notification shall occur no later than the December 1
19begin delete prior toend deletebegin insert beforeend insert the new fiscal year in which the proposed or
20expanding school or agency intends to initiate services. The notice
21shall include the following:

22(A) The specific date upon which the proposed nonpublic,
23nonsectarian school or agency is to be established.

24(B) The location of the proposed program or facility.

25(C) The number of pupils proposed for services, the number of
26pupils currently served in the juvenile court, community school,
27or other nonspecial education program, the current school services
28including special education and related services provided for these
29pupils, and the specific program of special education and related
30services to be provided under the proposed program.

31(D) The reason for the proposed change in services.

32(E) The number of staff who will provide special education and
33designated instruction and services and hold a current valid
34California credential or license in the service rendered.

35(3) In addition to the requirements in subdivisions (a) to (f),
36inclusive, the Superintendent shall require and consider the
37following in determining whether to certify a nonpublic,
38nonsectarian school or agency as described in this subdivision:

39(A) A complete statement of the information required as part
40of the notice under paragraph (1).

P10   1(B) Documentation of the steps taken in preparation for the
2conversion to a nonpublic, nonsectarian school or agency, including
3information related to changes in the population to be served and
4the services to be provided pursuant to each pupil’s individualized
5education program.

6(4) Notwithstanding any other provision of law, the certification
7becomes effective no earlier than July 1 if thebegin insert nonpublic,
8nonsectarianend insert
school or agency provided the notification required
9pursuant to paragraph (1).

10(l) (1) Notwithstanding any other provision of law, the
11Superintendent shall not certify or renew the certification of a
12nonpublic, nonsectarian school or agency, unless all of the
13following conditions are met:

14(A) The entity operating the nonpublic, nonsectarian school or
15agency maintains separate financial records for each entity that it
16operates, with each nonpublic, nonsectarian school or agency
17 identified separately from any licensed children’s institution that
18it operates.

19(B) The entity submits an annual budget that identifies the
20projected costs and revenues for each entity and demonstrates that
21the rates to be charged are reasonable to support the operation of
22the entity.

23(C) The entity submits an entitywide annual audit that identifies
24its costs and revenues, by entity, in accordance with generally
25accepted accounting and auditing principles. The audit shall clearly
26document the amount of moneys received and expended on the
27education program provided by the nonpublic, nonsectarian school
28begin insert or agencyend insert.

29(D) The relationship between various entities operated by the
30same entity are documented, defining the responsibilities of the
31entities. The documentation shall clearly identify the services to
32be provided as part of each program, for example, the residential
33or medical program, the mental health program, or the educational
34program. The entity shall not seek funding from a public agency
35for a service, either separately or as part of a package of services,
36if the service is funded by another public agency, either separately
37or as part of a package of services.

begin insert

38(E) Evidence of a successful criminal background check
39determination, conducted pursuant to Section 44237, for each
P11   1owner, operator, and employee of the nonpublic, nonsectarian
2school or agency is submitted to the Superintendent.

end insert

3(2) For purposes of this section, “licensed children’s institution”
4has the same meaning as it is defined by Section 56155.5.

5(m) Thebegin insert nonpublic, nonsectarianend insert school or agency shall be
6charged a reasonable fee for certification. The Superintendent may
7adjust the fee annually commensurate with the statewide average
8percentage inflation adjustment computed for revenue limits of
9unified school districts with greater than 1,500 units of average
10daily attendance if the percentage increase is reflected in the district
11revenue limit for inflation purposes. For purposes of this section,
12the base fee shall be the following:


13

 

(1)1-5 pupils   

$  300

(2)6-10 pupils   

500

(3)11-24 pupils   

1,000

(4)25-75 pupils   

1,500

(5)76 pupils and over   

2,000

P11  19

 

20Thebegin insert nonpublic, nonsectarianend insert school or agency shall pay this fee
21when it applies for certification and when it updates its application
22for annual renewal by the Superintendent. The Superintendent
23shall use these fees to conduct onsite reviews, which may include
24field experts.begin delete No fee shallend deletebegin insert A fee shall notend insert be refunded if the
25application is withdrawn or is denied by the Superintendent.

26(n) (1) Notwithstanding any other provision of law, only those
27nonpublic, nonsectarian schools and agencies that provide special
28education and designated instruction and services utilizing staff
29who hold a certificate, permit, or other document equivalent to
30that which staff in a public school are required to hold in the service
31rendered are eligible to receive certification. Only those nonpublic,
32nonsectarian schools or agencies located outside of California that
33employ staff who hold a current valid credential or license to render
34special education and related services as required by that state shall
35be eligible to be certified.

36(2) The board shall develop regulations to implement this
37subdivision.

38(o) In addition to meeting the standards adopted by the board,
39a nonpublic, nonsectarian school or agency shall provide written
P12   1assurances that it meets all applicable standards relating to fire,
2health, sanitation, and building safety.



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